Blowing the Whistle

by Sidney Blumenthal & r & & r & & lt;span class= & quot;dropcap & quot; & N & lt;/span & ew ranges of secret government are emerging from the fog of war. The latest disclosure, by The New York Times, of domestic surveillance by the National Security Agency demonstrates that there is a vast hidden realm evading the special Foreign Intelligence Surveillance Court. But the NSA spying is not an isolated island of policy; it is connected to the mainland of Bush's expansive new national security apparatus.

At the beginning of the Cold War, the National Security Act of 1947 authorized the creation of new institutions of foreign policy and intelligence, including the National Security Council and the Central Intelligence Agency. But Bush has built a secret system, without enabling legislation, operating beyond the oversight of Congress and the courts, and existing outside the law. It is a national security state of torture, ghost detainees, secret prisons, renditions and domestic eavesdropping.

The arguments used to rationalize this system insist that the president as commander in chief is entitled to arbitrary and unaccountable rule. The memos written by John Yoo, former deputy in the Justice Department's Office of Legal Counsel, constitute a basic ideology of absolute power.

Congress, at best, is held in contempt as a pest and, at worst, is regarded as an intruder on the president's rightful authority. During his first term, President Bush issued an unprecedented 108 statements upon signing bills of legislation that expressed his own version of their content. He has countermanded the legislative history, which legally establishes the foundation of their meaning, by executive diktat. In particular, he has rejected parts of legislation that he considered to be stepping on his power in national security matters. In effect, Bush engages in presidential nullification of any law he sees fit. He then acts as if his gesture supersedes whatever Congress has done.

Political scientist Phillip Cooper, of Portland State University in Oregon, described this innovative grasp of power in a recent article in the Presidential Studies Quarterly. Bush, he wrote, "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress."

Not coincidentally, the legal author of this presidential strategy for accreting power was none other than the young Samuel Alito, in 1986 deputy assistant attorney general in the Justice Department's Office of Legal Counsel. Alito's view on unfettered executive power, many close observers believe, was decisive in Bush's nomination of him to the Supreme Court.

Last month, when Bush signed the military appropriations bill containing the amendment forbidding torture that he and Vice President Cheney had fought against, he added his own "signing statement" to it. It amounted to a waiver, authorized by him alone, that he could and would disobey this law whenever he chose. The president, in the name of national security, claiming to protect the country from terrorism, under war powers granted to him by himself, would follow the law to the extent that he decided he would.

Sen. John McCain, the sponsor of the anti-torture legislation, according to sources close to him, says that he has not determined how or when he might respond to Bush's "signing statement." McCain wishes to raise other issues, like ghost detainees, and he may wait to see how the administration responds to the new law. Once again, torture policy enters a shadow land.

Bush has responded to the latest exposures of the existence of his new national security apparatus as assaults on the government. It is these revelations, he said, that are "shameful." The passion he currently exhibits was something he was unable to muster for the exposure by members of his administration of the identity of CIA operative Valerie Plame. But there is a consistency: In the Plame case, the administration officials who spun her name to conservative columnist Robert Novak and others intended to punish and intimidate former ambassador Joseph Wilson for having revealed that a central element of the administration case for the Iraq war was bogus. In the NSA case, Bush is also attempting to crush whistle-blowers.

Bush's war on professionals has been fought in nearly every department and agency of the government, from intelligence to Interior, from the Justice Department to the Drug Enforcement Administration, in order to suppress contrary analysis on issues from weapons of mass destruction to global warming, from voting rights to the morning-after pill. Without whistle-blowers on the inside, there are no press reports on the outside. The story of Watergate, after all, is not of journalists operating in a vacuum, but is utterly dependent on sources internal to the Nixon administration. "Deep Throat" -- Mark Felt, the deputy FBI director -- whatever his motives, was a quintessential whistle-blower.

Now Bush's Justice Department has launched a "leak" probe, complete with prosecutors and grand jury, to investigate the disclosure of the NSA story. It is similarly investigating the Washington Post's reportage of the administration's secret prison system for terrorist suspects. The intent is to send a signal to the reporters on this beat that they may be called before grand juries and forced to reveal their sources. Within the bowels of government, potential whistle-blowers are being put on notice that they put their careers at risk for speaking to reporters in order to inform the public of what they consider wrongdoing.

By counterattacking against whistle-blowers and the press, Bush is rushing to protect the edifice he has created. He acts as if the exposure of one part threatens the whole. His frantic defense suggests that very little of it can bear scrutiny.

A longer version of this commentary first appeared on & lt;a href="http://www.salon.com" & Salon & lt;/a & .

Thu., March 5, 7 p.m.

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